Baxter & Gilbert
[2022] FedCFamC1F 885
Federal Circuit and Family Court of Australia
(DIVISION 1)
Baxter & Gilbert [2022] FedCFamC1F 885
File number(s): BRC 13921 of 2021 Judgment of: BAUMANN J Date of judgment: 10 November 2022 Catchwords: FAMILY LAW – PARENTING – INTERIM – Whether the child should return to Brisbane – Father’s application dismissed – proceedings transferred to Sydney Registry Legislation: Family Law Act 1975 (Cth) Cases cited: Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
Division: Division 1 First Instance Number of paragraphs: 19 Date of hearing: 10 November 2022 Place: Brisbane Solicitor for the Applicant: Rhonda Sheehy and Associates Solicitor for the Respondent: Oden Legal Solicitor for the Independent Children’s Lawyer: Legal Aid Queensland ORDERS
BRC 13921 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BAXTER
Applicant
AND: MS GILBERT
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
10 NOVEMBER 2022
THE COURT ORDERS BY CONSENT:
1.That the parents engage with the Registry of Births, Deaths and Marriages Queensland to sign all necessary documents and do all necessary things to add the Applicant father MR BAXTER born in 1991 to the child X born in 2020 (“the child”)’s birth certificate.
THE COURT FURTHER ORDERS UNTIL FURTHER ORDER:
2.That the Applicant father’s Application that the Respondent mother relocate with the child to Region B or Region C areas be dismissed.
3.That upon the oral Application by the Respondent mother and pursuant to Rule 9.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, these proceedings be transferred to the Federal Circuit Court of Australia at Sydney.
4.That by 4.00pm on 2 December 2022, parties are to exchange with each other a minute of interim orders they seek.
5.That by 4.00pm on 2 December 2022, the parties shall file and serve a further affidavit setting out the interim arrangements for the child they seek.
6.That these proceedings be adjourned for Interim Hearing at 10.00am (Sydney time) on 9 December 2022 in the Federal Circuit and Family Court of Australia (Division 1) at Sydney before the Registrar.
IT IS NOTED:
A.That on 9 December 2022, the Court may review the Independent Children’s Lawyer’s continued involvement in the matter, considering Ms Walsh, Solicitor is engaged through Legal Aid Queensland. Noting this, it is requested that given Ms Walsh’s knowledge and long-standing involvement in the matter, that she remain appointed as the Independent Children’s Lawyer until interim arrangements are in place.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Baxter & Gilbert has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)
BAUMANN J:
The parents of X, born in 2020, knew little about each other when they conceived the child sometime in late 2019 or early 2020. I say that because at best, on the evidence, the parties commenced cohabitation in approximately April 2019 and separated in February 2020. For the reasons which follow, there has been no co-parenting relationship that has existed since the child’s birth. The father, who is aged thirty one, and the mother, who is aged twenty two, have not communicated since February 2020. As the Full Court in Goode & Goode (2006) FLC 93-286 made clear, when dealing with interim matters, consideration needs to be given to facts which are agreed or dispute, but as the Full Court also said in Banks & Banks (2015) FLC 93-637, only deal with such of the relevant primary and additional considerations, as are necessary to deal with the issue in dispute.
The issue in dispute today, for the reasons which I articulated earlier when I listed the matter at 1.00 pm today, is that the father had brought an Application after he became aware the mother was living in Sydney. That Application was filed 16 March 2022 in these terms:
That the mother, forthwith, relocate …the child, [X] born [in 2020] to [Region B/Region C] within twenty-eight days of the making of these Orders.
Further, other interim orders were sought, including that if the mother failed to return the child that a recovery order would issue.
It is abundantly apparent from the passionate submissions made by solicitor advocate Ms Sheehy, for the father, that both she and the father had become extremely frustrated by the failure of the Court system to deal with the Application as quickly as it should have. I accept that frustration has a foundation. Nonetheless, as I sought to explain to the parties today, when I brought this matter on urgently to deal with this Application, that there is no room in the family law jurisprudence to make parenting orders for children which have a hint of either punishment of a “bad” parent, or reward to a “good” and/or compliant parent. The only test which the law creates, and the pathway to determining that, is what is in the child’s best interests, which is the paramount consideration. Accordingly, as a matter of principle law in determining what is in the child’s best interests. I must determine that now; not at some past date or, to some degree, with some caution, a future date. I have indicated that I will not be making the order that the mother return, and as a result, Ms Sheehy, on behalf of the father, indicated the father would be proposing to spend time with the child in Sydney. The mother appeared from Sydney by telephone. Her solicitor appears before me. Ms Walsh, the Independent Children’s Lawyer, also appears before me.
I do not have sufficient data or information before me to understand what facilities might be available quickly and accessible at a cost or location, at least not totally inconvenient to the mother and the child for supervised visits, and so I am restricted in making any orders today. I have however, by arrangement with the National Registrar Coordinator, a Registrar, earlier today, identified a listing which I am giving this matter to a Registrar in Sydney at 10.00 am Australian Eastern Standard Time on 9 December 2022. In accordance with the new pathway, the matter will be listed for mention before a Registrar for ongoing case management thereafter
In reaching a conclusion that, on the evidence at this stage, untested as much of it is, and where making findings would be difficult, it is in the best interests in the child that the child continue to live with the mother in the Sydney region. I took into account, at least, that the mother did not tell the father about the birth of the child and says, without knowing that proceedings had been brought by the father on 20 October 2021, had, on that day or shortly thereafter, left to reside in the Sydney region from Region D. The father is suspicious about that and in fact says that the mother unilaterally relocated knowing that the Application had been brought. I cannot make that finding on the evidence before me today. The father’s Application filed 20 October 2021, in which he sought orders that the child live with the mother and spend time with him, was served at an email address. It has not been personally served.
To be fair, the father was unaware of the location of the mother and so, how could he serve her? Nonetheless, the mere sending of a document to an email address does not constitute service and does not constitute satisfactory evidence alone that the proceedings came to the attention of the mother on that date. It is not quite clear when the father first became aware that the mother had moved to Sydney. However by her Response, which she filed in the Court on 15 February 2022, the mother’s location would have been known to the father. In her Response, the mother did not oppose the child spending time with the father, but said it should be supervised.
Whilst the need to determine the father’s interim Application in his amended Initiating Application is apparent, many other steps were taken by judicial officers in the Court. Some of them have been helpful in determining the issue today. They are all evidence that is yet to be tested, but apart from an initial report, the Court has had filed, and I have read:
(a)a psychiatric examination of both parties conducted in March 2020 resulting in a report from Dr E, Consultant Psychiatrist, filed 24 June 2022;
(b)family report by Court Child Expert Ms F, dated 1 August 2022; and
(c)two s 65L reports where the time between X and the father were observed by a Court Child Expert on 13 September 2022 and 11 October 2022.
Notwithstanding all this information, there are still many areas of disagreement, including:
(a)whether, as the father asserts through his affidavit filed 19 October 2021 and through the submissions today, his reaction to the mother’s decision, and/or his decision to bring their personal relationship to an end, was the main cause of attempted self-harm by the father in 2020, and/or some criminal behaviour thereafter, which caused him to be convicted of various criminal offences in 2021, on his plea of guilty. Certainly, the father’s past history reflect some difficult psychiatric and/or mental health history, much of which, on the evidence, is associated with the excessive alcohol use;
(b)the father says, notwithstanding that difficult history, and the fact that he has now found a new partner in his life, things have settled down. He no longer drinks to excess; he has a therapeutic relationship with a psychologist and he is medicated and compliant with such medication. He is working and is in a good position, he says, to offer a valuable relationship to his son;
(c)indeed, the mother herself had had a difficult upbringing, as reflected in the history revealed by Dr E. She had attempted self-harm, it seems, in 2019, which was shortly after the parties commenced cohabitation. The father would say he was supportive of the mother at that time. The fact that they conceived their child some months later might support that assertion. But it is the mother’s view that she did not feel supported by the father; that he was abusive towards her, controlling, and his excessive use of alcohol, coupled with his underlying mental health issues, made living with him very, very difficult;
(d)after separation, the mother, in early 2020, made an application for a family violence protection order on the Queensland legislation which the father consented to without admission.
The extent to which the mother can, or will, support the relationship for X with the father, is untested. The father says that I would find, which I cannot on an interim basis, that the mother’s actions are reflective of a failure to support and/or see the benefits of the child remaining in Queensland for the child's best interest. The family report writer makes it clear that on two competing proposals, whilst the father’s proposition could be correct, at the very least, the mother was, on her view of the facts, justified in leaving Queensland with the young child, and moving to New South Wales, where she says she has family support, particularly her father and some other adults, and distancing herself from a person who she claims to have been a risk to her and of whom she was fearful.
To be fair to the father, his affidavit material, some of it filed before the report, was not as accepting of some of the concerns of the mother, as Ms F reports in her family report (noting interviews took place on 13 July 2022). For example:
(a)at paragraph 107 the father is recorded as saying he raises no concerns about the safety/well-being of the child with the mother, although believes the mother has history of mental health issues which is concerning to him;
(b)at paragraph 108 the father was recorded as acknowledging the mother would have been “fearful of him” at the time of the domestic violence order because of his seemingly quite erratic behaviour at that stage, shaped by his psychological distress, the breakdown of the relationship and perhaps, overuse of alcohol;
(c)at paragraph 109 the father recognised that by moving, the mother was, in some sense, acting protectively.
(d)at paragraph 112, the expert opines she did not just accept the mother’s allegations of the father’s past behaviour, although very concerning, as reflective of how the father may be presenting now. This allowed her to come to an opinion:
… the risk is not currently at a level that warrants prohibiting any contact with the father [and the child].
(e)Certainly, at paragraph 114, Ms F took into account the assessment of the father by Dr E, that his history of depression, substance use disorder and family background have led:
to a severe syndrome of behavioural disturbance, maladaptive problem solving and extremely irrational unlawful behaviour
Ms Sheehy will say that is all a matter of the past and that, to the extent where there is no evidence at the moment of any other anti-social behaviour, harassment of the mother or breaches of the domestic violence order, that may well be a finding made by a Court when all the evidence is tested.
The best interests of X are, at this stage of his development as a very vulnerable child, very much encompassed by the relationship he shares with his primary carer, the mother. Sad as it might be, the child really has no relationship with the father. Although, the father is desperate for that to begin and to be nurtured. Orders should be contemplated to do that on an interim basis. At least by so doing, there will be a chance to see whether the mother is able to comply with and support a relationship between the child and the father, and the father can demonstrate his real commitment to the ongoing relationship he wants with his son by, in an expensive exercise no doubt, travelling to New South Wales on a regular basis. All of that data needs to be assessed, as well as the child’s capacity to bond with his father, before this matter could realistically be ready for a final hearing.
In making the decision that it is in the best interests of the child, for the child remain in Sydney with the mother, I take into account the mother’s evidence, although again untested, that she is now settled; has the support of family; the child is in day care and doing sports and otherwise, happy. The father is not currently, notwithstanding that he says, and I am prepared to accept, a loving and caring father who wants a relationship with his son, a candidate for his child to live with him. He simply has not had a relationship with the child. Any further stress upon the mother, in parenting this child, will effectively affect the child. The evidence does not demonstrate, in my view, that the mother has any level of support in Queensland now. The father has not paid child support, although part of that is being wrapped up in disputes about paternity and his name being on the birth certificate. Clearly, he now understands his obligations and one might anticipate that he will, as required, make a reasonable contribution in support of his son.
Having indicated the intention to dismiss the father’s Application, I invited Ms Sheehy to see whether the father could provide at least some indication of his willingness to travel to Sydney and he has done that today, indicating that he would like to do so. I do not have sufficient data in which to make an order on an interim basis today. However, it is plainly obvious in my view that the further case management of this matter should occur in Sydney. Notwithstanding the expert reports which are currently available (all such witnesses being able to give evidence by electronic means if required), the important data that will be required by the Court to make a continually sensible interim decision, and ultimately, if required, to conduct a trial, is how the relationship with the father with the child progresses on the most frequent and regular supervised time that can be ordered initially and ongoing in this case. That needs to all be managed within the Sydney basin because of the evidence from people such as contact centre personnel and other people who may be interacting with the child (for example counsellors, medical staff and the like).
I will make directions now, after dismissing the Application, for the mother to return on the oral application which I gave leave to Mr Oden, solicitor for the mother, to bring today, for the proceedings to be transferred to the Sydney registry of the Federal Circuit and Family Court of Australia (Division 1). Sensibly, and I think reflective of the father having heard some of the things I said today, the father does not oppose that, even though in a practical sense, it is a little more difficult for him. I will make that order.
It is difficult for me to know, how the role of Ms Walsh, the Independent Children’s Lawyer in this matter, will continue with the matter in Sydney. That is a matter that no doubt Ms Walsh can take up with the funders at Legal Aid, noting that she is at Legal Aid Queensland. It may be necessary for the Senior Judicial Registrar to consider the appointment of a new Independent Children’s Lawyer in this matter, Sydney-based and funded by Legal Aid New South Wales. I would ask however, if possible, that Ms Walsh remain in this matter until an interim decision is made by the Senior Judicial Registrar in Sydney, as she has some familiarity with the case, the material and the parties.
All that is left to be said is that the mother and father, and I note the mother is hearing this from Sydney, have a long journey ahead of them. When a child is conceived in this dynamic, where it is not clear both parties had committed, in a knowing way, with information about the other parent, to what is almost a life-long relationship as co-parents of a child, one can only foresee the difficulties which cases like this present to the Court. The parents have had difficulties in the past, but they are young enough and capable, it seems to me, of offering something to entrench this child. Whether they can do so together in a cooperative manner and whether they will be spending years in courts like this, fighting over the issues, only time will tell.
For my part, it would be helpful that the father’s relationship with X builds on the two s 65L reports and provides this child an ongoing opportunity to identify with the father in a safe way.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 25 November 2022
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